Gonzales v. Carhart: How the Supreme Court's Validation of the Federal Partial-Birth Abortion Ban Act Affects Women's Constitutional Liberty and Equality Part Two in a Two-Part Series

Recently, in Gonzales v. Carhart, the Supreme Court upheld the federal Partial-Birth Abortion Ban Act of 2003 (PBABA). The decision exemplifies the consequences of the Court's changed composition - and in particular, the replacement of Justice O'Connor by Justice Alito, who appears to be significantly less supportive of Roe and its legacy.

The Gonzales opinion is remarkable not only for its curtailment of the pre-existing Court doctrine governing reproductive rights, which we described in Part I of this series, but also for its almost complete indifference toward the holders of those rights: women. Throughout the lengthy and graphic descriptions of abortion procedures, for example, there's scarcely a mention of women at all. Abortions seem only, in the eyes of the Supreme Court, to involve the "abortion doctor," "the fetus," and "the cervix."

In this Part, we will try to refocus the debate on a woman's right to choose. In particular, we will address Justice Kennedy's disturbing portrayal of abortion as posing psychological peril for women, and analyze how the ruling departs from the Court's prior affirmations of pregnant women's liberty and equality.

Abortion as a Psychological Peril for Women: A Concern Contradicted by the Evidence, and Out of Place in the Carhart Decision

In Carhart, Justice Kennedy focuses his attention on the "regret" he suggests women are likely to feel after having an abortion. Admitting that he found "no reliable data to measure the phenomenon," he nonetheless stated that "it seems unexceptionable to conclude some women come to regret the choice to abort the infant life they once created and sustained." In fact, this contention is not only unsupported by "reliable" evidence, it is contradicted by numerous studies. Thus, Justice Ginsburg's description of this rhetoric in her dissent as an "antiabortion shibboleth" is surely apt.

This reference to women's making a psychologically harmful decision, when they choose to have an abortion, has its roots in the 1992 decision in the Planned Parenthood v. Casey. There, the joint opinion -- by Justices Kennedy, Souter, and O'Connor - also paints a portrait of abortion as risking psychological peril for women. However, Justice Kennedy's analysis in Carhart goes much further, in that it sheds any reference to the context in which the decision to have an abortion is made.

A specific contrast between the two opinions will make clear the way in which Carhart goes further than Casey:

In Casey, the Court upheld Pennsylvania's informed consent scheme stipulating what women must be told before they can legally opt for an abortion. Among other things, that scheme required a description of the fetus's anatomical characteristics. In upholding such a requirement, the joint opinion appealed to women's "psychological well-being" as a "facet of health," and observed that it could not be doubted that "most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision."

For this reason, the decision permitted the state to ensure that a woman "apprehend the full consequences of her decision," by exposing her to the stipulated information, in order to further "the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed."

Carhart draws on these same notions of psychological peril. But this time, the context is different. Again, in Casey, an "informed consent" requirement was at issue. But in Carhart, what was at issue was the PBABA's ban of a particular abortion procedure. That ban was total (unless the life of the pregnant woman was threatened): It existed regardless of whether a woman's consent to it was "informed." Thus, concerns about whether women were well-informed would seem to be entirely irrelevant to the validity of the statute.

Thus, Casey andCarhart both appeal to protecting women from ill-considered decisions, but Carhart is on much weaker ground in doing so - in that it addresses a statute that does not inform women, but simply imposes a blanket restraint on them.

The Contrast between Casey and Carhart, and the Disappearance of Pregnant Women's Liberty

Another contrast between Casey and Carhart stems from the fact that they diverge radically on the issue of women's constitutional liberty, in a way that signals the precariousness of abortion rights under the Roberts Court.

Notably, Casey stated that "the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law." For this reason, even though abortion is an act "fraught with consequences," the joint opinion in Casey held, the state may not "proscribe" abortion in all instances, because:

"The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist that she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the women's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."

There simply is no analogue in Carhart to this important affirmation of women's decisional autonomy and liberty. Indeed, one must turn to the Carhart dissent to find such an affirmation or, frankly, any concern at all about a woman's right to make the decision to have an abortion.

Strikingly, in Carhart, Justice Kennedy refers to these very pages from Casey when he describes abortion as a "difficult and a painful moral decision" and declares that the PBABA recognizes the "reality" that "respect for life finds an ultimate expression in the bond of love the mother has for her child."

Yet in contrast to Casey's emphasis on the bond of love formed when a woman "carries a child to full term," in Carhart, Justice Kennedy speaks of this bond as one that precedes a child's birth, and survives the woman's choice to abort. The preexisting "bond" thus becomes a source of regret not only for any act that terminates the life of the fetus, but particularly for an act that does so in a way that is "inhumane."

On this view, Congress' ban spares women the heightened regret caused by a doctor's choice of a particularly gruesome method of abortion, even if the fetus still dies. Thus, Justice Kennedy concludes: "It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

Note Justice Kennedy's use of the term "mother," here, to describe a pregnant woman, and his reference to the "bond of love the mother has for her child" to describe even women who ultimately elect to abort. These references are not accidental, but, instead, reflect the view that women should be protected against abortion because it goes against women's innate maternal nature (a view at work, as Yale Law Professor Reva Siegel documents, in South Dakota's proposed abortion ban). It brings to a mind a vow of one anti-abortion rights supporter that "We will not rest until every child is safe in its mother's womb."

Also in contrast to Carhart, Casey situated the issue of abortion and of the state's authority to advance its respect for fetal life in the context of women's lives, and considered carefully the impact of pregnancy on women's bodily integrity. Carhart lacks this context, and this careful consideration.

Indeed, Carhart's apparent solicitude for women's psychological health and protecting their maternal nature stands in jarring contrast to its total disregard for their physical health. Fetal life and graphic descriptions of how abortion procedures affect it are the focal point of the opinion. Moreover, the lack of an exception for women's health is sustained simply because medical evidence is conflicting - even though a body of evidence suggests that this partial procedure is indeed necessary at times to protect women's health.

By contrast, consider the attention paid to women's health in Stenberg v. Carhart, the Rehnquist Court's earlier decision striking down Nebraska's "partial birth abortion law" because it omitted a health exception. Stenberg, a previous case, detailed extensively the possible health risks to some women from the most common second-trimester abortion method, D & E.

Moreover, in Stenberg, unlike in Carhart,the Court used the medical uncertainty in women's favor: If intact D & E was a safer choice for some women, the Rehnquist Court reasoned in Stenberg, then the state could not ban the procedure without including a health exception. Carhart, however, reflecting the disdain of a majority of the Roberts Court for abortion rights, refers instead to the federal PBABA as burdening physician's "mere convenience" or "preference," and relegates women who might need intact D & E for health reasons to the option of bringing their own "as applied" challenges, forcing them to litigate while pregnant the specific, private medical facts pertaining to their pregnancies.

For all of these reasons, Carhart, for all its apparent solicitude for the supposed need to shore up respect for fetal life, indicates a troubling lack of respect for women's decisional liberty and bodily integrity.

The Supreme Court's Paternalism, and the Disappearance of Women's Equal Citizenship

Carhart also departs from the Supreme Court's prior recognition, in Casey, of the important role of reproductive rights in securing women's equal citizenship. As the excerpted portions of the opinion above reflect, the Carhart majority concerns itself with its own views about women's role in society, motherhood, and the capacity of women to make good decisions.

Inherent in this view is a deep skepticism about women's capabilities, and a retreat from the establishment of women's hard-fought freedom to avoid the constraints of state-enforced gender roles. No wonder that Justice Ginsburg states in her dissent in Carhart that "[t]oday's decision is alarming."

Carhart infringes women's equality both by curtailing the abortion right itself, and also by relying on archaic and stereotypical assumptions in its analysis. Justice Kennedy's casual, essentialist assumptions about how women regard their fetuses, and how they react to the decision to abort, hearken back to routine assumptions animating the discriminatory and protectionist legislation of earlier centuries.

Consider a few of the older laws animated by very similar assumptions: Florida gave women an automatic exemption from jury service, because it was assumed that childrearing responsibilities would prevent them from being available to serve. Oregon put a limit on the number of hours women could work in a bakery, for fear that excessive physical work would damage their reproductive organs and inhibit them from fulfilling their destined role as mothers. Illinois refused to permit married women to practice law, because it was deemed inconsistent with their roles as wife and mother.

What do all these laws have in common? Not one would survive constitutional scrutiny today, under the Supreme Court's own equal protection jurisprudence. That is because they make assumptions about gender, and legislate based on those assumptions, rather than on particular women's individual capacities, and because they assign societal roles based on gender. As Justice Ginsburg notes in her dissent in Carhart, "[t]his way of thinking reflects ancient notions about women's place in the family and under the Constitution - ideas that have long since been discredited."

Modern constitutional sex equality law -- much of it a product of Ruth Bader Ginsburg's work as a women's rights advocate before she joined the Supreme Court -- has revolved around two prongs: the elimination of "archaic and overbroad generalizations" about women, and the elimination of state-enforced gender roles.

Yet Carhart violates both prongs. First, it assumes women inherently suffer "psychological peril" as a consequence of abortion. Second, it accepts Congress' efforts to protect women from their own decisions, and to promote a conception of an innate mother-child bond through anti-abortion legislation.

As Justice Ginsburg details in her dissent, however, the reality - supported by evidence that is not only "reasonable" but convincing and clear - is that not all pregnancies are wanted, and not all abortions cause regret. Indeed, the "psychological peril" of delivering and parenting a child a woman did not intend to have (especially one whose conception results from forced sex, in a situation of rape or incest) can surely cause equal, if not greater, peril.

Carhart's repudiation of modern principles of sex equality might be less surprising if Casey had not already strongly affirmed them in the abortion context. The joint opinion in Casey - which, once again, it is worth remembering that Justice Kennedy joined -- observed that rules placing women "as the center of home and family life, with attendant special responsibilities" were "no longer consistent with our understanding of the family, the individual, or the Constitution." Moreover, the joint opinion further observed that women's ability "to participate equally in the economic and social life of the Nation" is inextricably linked to "their ability to control their reproductive lives." Yet in Carhart, it is as if the Court - especially Justice Kennedy - has completely forgotten what was said on these two crucial issues in Casey.

Indeed, the effect of abortion restrictions on women's equality is completely absent from Carhart -- in which, as noted above, women are depicted only as "the cervix," or as mothers likely to regret their abortion decisions. This detachment of abortion from women's rights issues derails the reproductive rights movement -- which has, as Justice Ginsburg argues in dissent, sought not "to vindicate some generalized notion of privacy," but, rather, to focus "on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."

Considering Abortion in Context: The Problem of Unwanted Pregnancy

Around the time that the Supreme Court decided Casey, President Clinton articulated the goal that abortion should be "safe, legal, and rare." Implicit in this slogan was the idea that the better path to reducing the abortion rate was not by eliminating women's right to choose abortion, but rather by reducing the need for abortion.

Why do women need abortions? The United States continues to have a shockingly high level of unwanted pregnancies, relative to other industrial nations. This is not simply a problem of teen pregnancy, but includes adult women, among them married women and mothers who already have children. Notably, the National Campaign to Prevent Teen Pregnancy has recently announced that it will officially expand its mission to focus also on reducing the high level of unwanted pregnancy in the U.S. among adults, especially those under 30, who experience the vast majority of unwanted pregnancies. Such a campaign is aimed, ultimately, at reducing the need for abortion.

From time to time, people on both sides of the abortion debate appeal to finding "common ground" on the issue of reducing the need for abortion. Reducing the rate of unwanted pregnancy is one such common goal. Indeed, such a goal would seem to advance both women's equal citizenship and the governmental interest in encouraging respect for life. Yet public policies, and some employers' policies as well, continue to hinder that goal.

The government's continual dumping of federal funds into abstinence-only-until-marriage sex education, instead of abstinence-plus or comprehensive sex education, is one such hindrance. Perhaps the recent government-commissioned report by Mathematica, which finds that such curricula have been ineffective, might lead Congress to shift its focus toward a more scientifically sound approach (such as that taken in the pending Responsible Education About Life Act of 2007).

Likewise, women continue to face obstacles to obtaining contraception through their health insurance plans. As Joanna Grossman wrote in a previous column, the U.S. Court of Appeals for the Eighth Circuit recently interpreted the Pregnancy Discrimination Act to permit employers to offer insurance excluding prescription contraceptives for women, even if that insurance is otherwise comprehensive, covering other prescription drugs.

These are just two examples of policies that exacerbate the very real problem of unwanted pregnancy - and the resulting demand for abortion.

Evaluating Carhart: A Serious Blow to Women's Rights that May Have Larger Ramifications

In sum, the Supreme Court has struck a hard blow at women's rights with its decision in Gonzales v. Carhart. Beyond the obvious ramifications for abortion rights, the Court's analysis and reasoning infringe long-established liberty and equality rights for women. The decision is all the more troubling for that reason.

Carhart revives a view of women and their rights that recently seemed to belong to the distant past. Let us hope that we do not return, now, to the day when Congress or the states use their power to "protect" women or to prescribe unflinching roles for them in society. Those days are, or at least were, gone.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site. Linda McClain, who has been a prior guest columnist for FindLaw, is Rivkin Radler Distinguished Professor of Law at Hofstra University. She discusses same-sex marriage and other family law issues in The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, 2006).